Bishop v. Bishop

• Citation: 151 S.W.2d 553
• Decision Date: 03 June 1941
• Docket Number: No. 25668.,25668.
• Parties: BISHOP v. BISHOP.
• Court: Court of Appeal of Missouri (US)

151 S.W.2d 553

BISHOP v. BISHOP.

No. 25668.

St. Louis Court of Appeals. Missouri.

June 3, 1941.

Appeal from Circuit Court, St. Louis County; John J. Wolfe, Judge.

"Not to be reported in State Reports."

Suit for divorce by Lucille Juliet Bishop against Daniel S. Bishop. From a judgment overruling plaintiff's motions for amendment nunc pro tunc of a prior judgment so as to conform to a certain stipulation, and for execution, plaintiff appeals.

Affirmed.

Igoe, Carroll, Keefe & McAfee and J. W. McAfee, all of St. Louis, for appellant.

Claude W. McElwee, of St. Louis, for respondent.

SUTTON, Commissioner.

Plaintiff commenced her action for a divorce in the Circuit Court of St. Louis County on November 19, 1937. In her petition she charges, as ground for a divorce, that defendant has offered her such indignities as to render her condition intolerable. She prays judgment for a divorce and the allowance of alimony.

On December 3, 1937, the court rendered and entered of record its judgment as follows:

"Now at this day comes the plaintiff in person and by her attorney, and the defendant appears by his attorney; and this cause being now submitted to the Court upon the pleadings, evidence and proofs adduced, and the Court having seen and heard the same and being fully advised in the premises, finds the issues herein joined in favor of the plaintiff and that said plaintiff is justly entitled to the relief prayed for in her petition.

"Wherefore, it is ordered, adjudged and decreed by the Court that said plaintiff and defendant be and they are hereby absolutely divorced from the bonds of matrimony existing between them, and that said plaintiff be and is hereby restored to all the rights and privileges of a single and unmarried person and that said plaintiff pay the costs herein incurred. Stipulation as to support and maintenance filed and approved by the Court."

The stipulation referred to in the judgment was executed in October, 1937, and was filed on the day that the judgment was rendered.

Omitting caption and signatures the stipulation is as follows:

"In the event the Court, after having heard the evidence herein and after having considered the same, shall determine and adjudge that plaintiff is entitled to a decree of divorce, then, and in that event, it is hereby stipulated and agreed between the parties hereto, as and for settlement of plaintiff's property rights and as award for alimony, as follows:

"(1) That defendant shall pay the plaintiff, from and after the date of the decree of divorce herein, one-third of his total gross income, from whatever source derived, provided, however, that defendant shall not be obligated at any time to pay on account of this item a sum greater than One Hundred Dollars ($100.00) per week.

"(2) And in addition to the above, defendant shall pay to plaintiff Two Hundred Dollars ($200.00) per year, payable quarterly, as an allowance for the purchase of clothes, provided, however, that if during any year the amount received by plaintiff under paragraph (1) hereof, shall be equal to or exceed an average of Sixty Dollars ($60.00) per week, then defendant shall not be obligated to make any payment for clothes allowance.

"(3) If, at any time or times, during a period of two years, beginning from the date of the granting of a decree of divorce herein, the condition of plaintiff's health is such as to make it reasonably necessary for her to have the care of doctors, nurses, hospital or other medical expense, and if the amount of such items of expense for any one illness shall exceed the sum of Fifty Dollars ($50.00), then defendant shall pay for all such items in excess of Fifty Dollars ($50.00) which are reasonably and necessarily incurred in connection with such illness. If any such illness occurs, in which such expense is for hospitalization, which includes board and room, then plaintiff agrees that one-half of the amount which she receives under paragraph (1) hereof, shall be applied to the payment of the item for board and room and shall be a credit, in addition to said Fifty Dollars ($50.00), on the amount which defendant is to pay.

"(4) Defendant shall pay for the Ford automobile now in possession of plaintiff, and shall pay for all reasonably necessary repairs until said automobile has been fully paid for; then defendant shall convey the same, free and clear of all liens, to plaintiff.

"(5) The defendant shall obtain in a company, to be approved by the plaintiff, an ordinary life insurance policy on his life in the sum of Six Thousand Dollars ($6,000.00), providing for double indemnity in case of death by accident, and defendant shall pay, when due, all premiums on said policy and shall cause plaintiff to be designated in such policy as the sole and irrevocable beneficiary and shall assign to plaintiff all rights of whatever nature may accrue under said policy and shall cause the insurance company to forward all receipts in payment of premiums to plaintiff and to notify plaintiff of the non-payment of any premium thereon, or any lapse of said policy or of any change, or proposed change, therein, which would in any way decrease or affect her rights therein.

"(6) If plaintiff should predecease defendant, then there shall be no further obligation on defendant to continue to pay premiums on the life insurance policy mentioned in the preceding paragraph, but it shall be the duty of defendant to provide for a proper and fitting funeral for plaintiff and to provide for her interment in the St. Louis Truth Center, or at any other place which she may designate by will, provided, however, that, if plaintiff shall make by will any provisions for her funeral contrary to the above, such provision shall control.

"(7) The diamond ring, given plaintiff by defendant, shall at the death of plaintiff be the property of defendant.

"(8) The aforesaid shall constitute a full and complete settlement of all of the claims, rights or duties which either party owes to the other, and shall constitute a full and complete release thereof, and in consideration hereof, plaintiff does hereby expressly release any and all claims of whatever nature which she has or may have against defendant, including any right to dower or other property interest."

On February 27, 1940, plaintiff filed her motion asking that the judgment be amended nunc pro tunc so as to conform to said stipulation. On the same day plaintiff filed a motion for execution. The motions were heard together and overruled. Plaintiff appeals.

Upon the hearing of the motions, plaintiff testified that defendant paid her for a period of two years one-third of his earnings as a cartoonist for the St. Louis-Star Times, and that the last check she received from him was dated January 12, 1940; that on January 12th she received a check from him for $41.67; that up to May, 1939, she had received $45 a week; that when she was getting $45 a week he was earning $135 a week; that the payments she had been getting since May, 1939, had been at the rate of one-third of $125 a week; that defendant had not paid her the $200 annual allowance for clothing; that she became ill in October, 1939, and was in the hospital for twenty days, where she had a surgical operation, incurring a doctor's bill of $174, nurses' bill of $99.35, and a hospital bill of $147.20, of which $100 was for board and room.

When defendant ceased making payments on the basis of one-third of his income, as provided for in the stipulation, plaintiff filed the motions with which we are here concerned, and, being in doubt as to her remedy, also filed an independent suit, which is still pending, in the Circuit Court of St. Louis County, to recover the amount claimed to be due under the stipulation.

Plaintiff contends that the stipulation signed by the parties and filed with the court is a stipulation for alimony, merely advisory in its nature; that it was filed to be made the basis of a...